So you have to prepare for a deposition. Your attorney has called you into his office and is going to give you instructions. A deposition is both a positive and a negative. On the positive side, it gives you the opportunity to tell the other side what occurred. On the negative side, it gives the other attorney a chance to harass you, possibly confuse you, and will be recorded so that any errors that you make will be recorded, and will be able to be used at trial.
In preparing for a deposition, it is important to keep both of these facts in mind. Specifically, the preparation for a deposition is an important step in terms of telling a jury what has happened to you and what you know about it.
There are four processes that one goes through during a deposition question and answer: listening, pausing, answering directly, and stopping. Once you have mastered these four steps, you will find that the deposition is not frustrating but rather is a good chance for you to be able to share information with the other attorney while not being tricked.
1. LISTEN TO THE QUESTION
The first and most important step of any process of answering a question is making sure that you understand what the question is. In listening to the question you just need to ask yourself whether or not there are any fancy words that seem to be tricky, or whether it appears to be a straightforward question. If you feel that you are being asked a complicated question and are not sure you understand, you should ask for clarification from the other lawyer. If the question is too long and you can’t keep it all in your head at the same time, ask the other attorney to break it down. When you answer a question that you don’t understand, you could possibly give an incorrect answer that you don’t intend to give. The first step to making sure you don’t do this is to listen to the question, and if you don’t understand it, make sure the other attorney knows.
I represented a basketball coach once who taught me about the art of making a jump shot. The reason that basketball players will do a jump shot is that they can get into the air, find their center, and then shoot. The process is one that becomes so automatic that it brings up a shooting percentage quite a bit. To do that, the shooter needs to find their center.
In answering a question, you need to find your center. Don’t be in such a rush to answer a question that you don’t give yourself time to find your center. Make sure you are relaxed. If you’re answering a question out of frustration, sometimes you can give an answer that is not accurate. Pause for just a second. That can be taking a breath, or pausing for just a second to make sure the other attorney has asked the full question. Make sure to do it so that you can develop a rhythm to the deposition that will allow the other side to ask questions efficiently and give you time to find your center and give the best answer that you can.
3. ANSWER DIRECTLY
The most frustrating thing for an attorney, when listening to a witness give an answer, is when the deponent doesn’t give straight answers. I was at a deposition in which a client was asked whether or not he had ever been arrested for a felony. He asked, in the United States or in his home country? The attorney replied, well, in the United States? The answer was no. The attorney then asked, what about in your home country? The answer again was no.
Why did he ask for that kind of specificity? Is it possible that he may have committed a crime in France? I don’t know. But it struck me as very evasive answering of the question.
The way to understand what you need to do at a deposition is to realize that you are not going to win the deposition by yourself. You don’t need to answer every question in the way that you believe helps you. When a witness tries to do that, they can be tricked into answering questions very inaccurately because they aren’t just answering the question directly. If you’re trying to figure out what the attorney wants and giving the opposite answer, then you are going to have a problem. If the attorney notices this, they can trick you into giving all kinds of answers. It is best if you testify to the truth. Don’t give cute answers. Give a direct answer. If the question calls for a “yes” or a “no,” give a yes or a no.
Other questions will call for a longer answer, and you shouldn’t answer yes or no. If, for instance, in a wrongful death case, the other side asks you what you miss most about the decedent, you should be prepared to give a longer answer.
You need to understand, in answering a question directly, that there are three levels of certainty. There are some things that you will be certain of; there are some things that you have no idea of; and, there are other things about which you have more knowledge than anyone else in the room, but aren’t particularly sure about.
When I was a young lawyer, I read that you should make sure that your client remains ambiguous on just about everything. I sat down with a client to prepare them for a deposition. The question was asked, “Which shoe did you put on first this morning?” They said that they had put on their right shoe. I asked, but what if you only had your left shoe and you just kind of forgot that you had put that one on first—is it possible that you could have put your left shoe on first? Are you absolutely certain? Do you have a specific memory of that? By the time of their deposition, they were so scared about giving specific answers that when asked for their name, they looked at me and testified “I think it’s ________.”
The key to this is that there are levels of certainty that you just need to know about.
If you answer that you “think” your name is something because you weren’t actually there at the time when you were named, you are not giving a direct answer. The things that you know because you saw them, you should not hesitate to give a direct answer.
There are some things that you don’t know. Do you know what someone else was thinking at the time that something occurred? Probably not; you don’t have the ability to know what other people were thinking, and if you are asked the question it’s better to be honest and answer that you don’t know, unless you have some evidence, such as a statement made after-the-fact that gives you some evidence to base your opinion upon. It is not unusual for people not to remember everything that occurs to them. Just be honest and hopefully any gaps in the facts that are there can be corrected by your attorney or by other witnesses or other evidence which will help to fill in all the blanks.
There are some things that you probably do know. If you are in a car accident, there are a number of facts that seem like everyone should know them: how far you were from the intersection when the light turned red, what speed you were driving, where you were going. Some of these are things that you can answer with positivity. You know where you were coming from and where you were going. Other things, such as speed, are easy for some people to estimate, but more difficult for others. If you are not good at estimating speeds, then make sure you let the other side know that you are not good at estimating speeds, but that your estimate is __________. If you are asked for distances and you have certainty that your ability to gauge distances is good and that the accident or the events in the case did not affect your memory, then testify without qualification. If, however, you are not good at estimating distances, then make sure to let the other side know, and if you’re not certain, make sure to let them know that as well.
You don’t need to win the case by yourself. Your attorney should have helped you to understand why you’re suing, and what the important questions are in the case. You should feel relatively comfortable that your attorney is doing a good job for you and is aware of what the facts are so that you know that your story will be told in a fair manner to a jury.
Having given a direct answer to a question, you may now wait for the next question. The attorney has a right to know everything that they want to ask, so long as the question is not objectionable, and if they have been given the answers to everything that they’ve asked for, then you can wait for the next question in all fairness to the other side. Rather than talking about things that aren’t questions, the deposition will move much more efficiently if you answer the question that is being asked fairly and directly, and then wait for the next question.
At the end of the deposition, your lawyer may ask you a few questions to bring out any type of information that should be, in fairness, provided to the other side. You should be able to answer all the questions and prepare your case properly for trial in an honest way that should be, if not easy, at least pain-free to you.